THEAITORKEY GENERAL 

GERALD C, MANN 

Ar~srr~s~ la. - 

Honorable J..E. Broussard, Chairman 

Texs% Rice Development Commission 

Beaumont, Texas 

Dear Sir: 

Opinion No. O-l+143 

Re: Whether taxes collected under' 

Texas Rice Development Act, H.B. 

136, Acts 47th Leg., may be held 

in escrow pending judicial determination of validity of the Act. 

In your letter of October 13th you request our opinion on the 

followin questions relating to the Texas Rice Development Act, 

B. B. 13g, Acts 47th Legislature, Regular Session: 

"1. As we understand, this processing tax law became effective ninety days after adjournment of the Legislature 

(October 2, 1941) and we shave approved aform; of tax return 

to be mailed to each of the rice millers, to be executed 

as provided by said law. 'sJould the Commission, acting 

advisory to the State.Department of Agriculture, be per% 

mitted to hold all taxes in trust or escrow pending the 

outcome of any suit contesting the validity of saidact or 

either of the acts of Arkansas or Louisiana? In this connection, we are advised that there is now before the Supreme 

Court ~of Arkansas a suit by one of the rice millers of that 

state contesting the validity of its law. If your opinion 

is that we can hold said funds in escroiv, then how long 

should we hold them? 

"2. Should any of the rice millers upon receipt of the 

monthly tax returns pay the tax under said law to us, would 

we be justified in going ahead and~using the money? If so, 

then in the event the rice law of either of the three states 

should be declared invalid, would the members of the Commission, or the State Department of Agriculture, be personally liable for the refunding of the money to the taxpayer?" 

i In our Opinion No. O-4114, copy of which is~enclosed herewith, we 

held that the-taxes collected under said Texas Rice Development 

Act are to be deposited in the State Treasury'and to be--expended 

for the purpose declared in said Act upon warrants drawn by the 
r. 

Honorable J. E. Broussard, Chairman, Page 2 o-4143 

Comptroller of Public Accounts. This being true, taxes paid under the Act may be held in suspense pending a judicial determination of the validity of the Act only under the statutory procedure 

prescribed in such cases. This procedure is set out In Articles 

4388 and 7057b, Vernon's Annotated Civil Statutes of Texas. 

These statutes are so lengthy that we will not set them out in 

full in this opinion. Suffice it to say that Article 7057b, 

requires the taxpayer to make payment of the tax and "accompany 

such payment with a written protest setting out fully and in 

detail each and every ground or reason why it is contended that 

such demand is unlawful and unauthorized," and to file suit in 

Travis County for recovery of the tax within ninety (90) days from 

the date of ayment. 

110 S.ul. (2dP 891; Producers & Refiners Corp. 

See Rogers v. Daniel Oil & Royalty Co., 

of Texas v. Heath, 

Sl S.N. (2d) 533; Rainey v. Malone, 141 S.ti/. (2d) 713. 

Any money which is paid under protest is not subject to being 

spent for the purposes enumerated in the Rice Development Act 

pending determination of the suit for recovery by the taxpayer. 

Any taxes which are not paid under protest will be deposited in 

the State Treasury and will be subject to disbursement upon 

warrants, issued by the Comprtoller of Public Accounts in the 

absence of any judicial declaration or determination to the contrary. As said in our opinion No. O-2627: 

"The Supreme Court of the United States in the case of United 

States v. Realty Company, 163 U. S. 427, 41 U. S. (L Ed.) 

215 held knowledge of the invalidity of an Act of Congress 

wi¬ be imputed, in advance of any authoritative declaration to that effect, to those who are acting under its 

provisions, so as to preclude them from having equities 

based on their reliance upon the Act. 

"It has been said that a ministerial officer has.not the 

right to decide upon the constitutionality or unconstitutionality of an Act passed with all the' formality of law. It 

is the duty of such officers to execute and not to pass 

judgment on the law. Volume 9 Texas Jurisprudence, 468; 

Sessums v. Botts, 34~ Tex. 335 fholding an unconstitutional 

act regulating the collection of debts protected clerks of 

courts acting under it)." 

The members of the Texas Rice Development Commission cannot be 

personally liable for the refund of any taxes to the taxpayers 

when such tax moneys have been paid to the State Treasurer, because, in the event such taxes are not paid under protest and 

suit filed for their recovery within ninety (90) days, as provided 

by Article 7057b, the taxpayer would not be entitled to a refund; 

and in the event such taxes are paid under protest and suit is 

filed for their recovery, their disposition will be determined by 

the final judgment of the court in such suit. 
Honorable J. E. Broussard, Chairman, Page 3 o-4143 

.$PPROVZD NOV. 4, 1941 

GROVER SZLLERS 

FIRST ASSISTANT ATTORZY GENERAL 

;rm : L&I : ml 

ENCLOSURE 

Yours very truly 

ATTORNEYGENERALOF TEXAS 

BY 

Walter R. Koch 

Assistant